COURT OF APPEALS DECISION DATED AND FILED July 8, 2008 David R. Schanker Clerk of Court of Appeals |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
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STATE OF |
IN COURT OF APPEALS |
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DISTRICT I |
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State of Plaintiff-Respondent, v. Davon Terrell Smith, Defendant-Appellant. |
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APPEAL
from a judgment and an order of the circuit court for
Before Curley, P.J., Wedemeyer and Fine, JJ.
¶1 FINE, J. Davon Terrell Smith appeals a judgment entered after a jury found him guilty of second-degree intentional homicide while armed, see Wis. Stat. §§ 940.05(1), 939.63, and being a felon in possession of a firearm, see Wis. Stat. § 941.29(2). He also appeals an order denying his postconviction motion. Smith claims that: (1) his trial lawyer was ineffective; and (2) the trial court erroneously excluded evidence. We affirm.
I.
¶2 Smith was tried for shooting and killing his girlfriend, Bridgett Larry, in March of 2004.[2] At his trial, several witnesses testified that the shooting happened during a party at an apartment complex. As the party was ending, Smith and Larry began to yell at each other. Smith was on a second-story porch and Larry was in the courtyard below. During the argument, Larry got a knife, went up the stairs, and kicked open the stairwell door. Several witnesses testified that Smith then shot her several times. According to one witness, Smith shot Larry “in cold blood, not even allowing her a chance to come through the door.”
¶3 Smith’s theory of defense was that he shot Larry in self-defense. See State v. Head, 2002 WI 99, ¶¶4–5,
255
¶4 As we have seen, the jury found Smith guilty of second-degree
intentional homicide while armed and being a felon in possession of a
firearm. Smith sought a new trial on the
issues he raises on this appeal. The
trial court held a hearing under State v. Machner, 92
II.
¶5 On appeal, Smith’s claims revolve around what he contends are “two critical pieces of evidence pertaining to [his] defense” that were not presented at his trial: (1) evidence that in September of 2002, Larry stabbed her then-boyfriend Reginald Richardson; and (2) evidence that a witness was afraid of Larry’s family. We look at each piece of evidence in turn.
A. 2002 Stabbing.
¶6 Smith’s trial lawyer tried to introduce evidence of the 2002 stabbing after Mary Williamson, a witness for the State, testified on direct-examination that she did not see Larry with a knife on the night of the shooting:
Q Did you hear any other specific things that Bridgett [Larry] said to [Smith]?
A She told him -- she said -- I can’t exactly remember what she said, but it was something like I’m going to come up there. I’m not scared of you. I’m going to come up there and F you up.
Q And when you say F, you mean I’ll come up there and fuck you up?
A Fight, yeah. She like -- she didn’t -- she actually -- the knife didn’t mean nothing because she didn’t -- she didn’t never stab nobody. It was just something to scare people.
Q Well, the question is did you see her with a knife that night?
A No, I did not.
Q But you knew later that there was a knife found right by her?
A That’s what the detectives told me.
Q And that didn’t shock or surprise you?
A No, it didn’t.
On cross-examination, Williamson testified that Larry had never stabbed anyone:
Q As a matter of fact, you said when the district attorney was asking you that as far as you’re concerned, Bridgett never stabbed anyone?
A She hasn’t.
Smith’s lawyer did not ask Williamson about the 2002 stabbing during cross-examination.
¶7 After Williamson testified, Smith’s lawyer sought to introduce
the prior stabbing through
There’s information that was provided to me by the State involving a victim by the name of Reginald Richardson who was brought down from the State Prison System, that be ordered [sic] to produce in this case that I had to sign previously. Reginald Richardson would testify that he was involved in an argument with Bridgett [Larry] and that Bridgett [Larry] essentially stabbed him in the shoulder as he laid in bed.
Smith’s lawyer claimed that the
¶8 On appeal, Smith raises two claims related to the 2002 stabbing: (1) his trial lawyer was ineffective because the lawyer did not argue that the prior stabbing was admissible other-acts evidence, see Wis. Stat. Rule 904.04(2)(a); and (2) the trial court erroneously excluded the 2002 stabbing because it was admissible to impeach Williamson’s testimony that Larry had never stabbed anyone. We begin with Smith’s ineffective-assistance claim.
¶9 In order to prove ineffective assistance of counsel, a
defendant must show: (1) deficient
performance; and (2) prejudice. Strickland
v.
¶10 At the Machner hearing, Smith’s lawyer
testified that he did not try to introduce the 2002 stabbing as other-acts
evidence because Smith did not know about the stabbing when he shot Larry. See
McMorris
v. State, 58
¶11 Whether other-acts evidence should be
admitted requires the application of a three-part test: (1) whether the evidence is offered for a
permissible purpose under Wis. Stat. Rule 904.04(2)(a); (2) whether the evidence
is relevant under Wis.
Stat. Rule 904.01; and (3) whether the probative value of the
evidence is substantially outweighed by the danger of unfair prejudice,
confusion of the jury, or needless delay, see
Wis. Stat.
Rule 904.03. State
v. Sullivan, 216
¶12
¶13 An act is not admissible to show motive unless it “provided a
reason for committing the charged offenses or that there was some link between
them.” See State v. Cofield, 2000 WI App 196, ¶12, 238
¶14 Similarly, evidence showing a plan “requires
more than a similarity between the prior act and the offense charged; there
must be a linkage between the two events that permits the conclusion that the
other act led to the commission of the offense charged.” State v. DeKeyser, 221
¶15 Finally, whatever intent Larry may have had during the 2002 stabbing does not show that Larry intended to stab Smith. The incidents are not sufficiently connected in time, place, or circumstances to be probative of Larry’s state of mind. The 2002 stabbing is evidence only of propensity—that is, that because Larry had stabbed someone before she was likely to do it again. This is the very purpose forbidden by Wis. Stat. Rule 904.04(2)(a). Accordingly, the prior stabbing was not admissible as other-acts evidence, and Smith’s trial lawyer was not deficient for failing to seek its admission.
¶16 Smith also contends that the trial court erroneously exercised
its discretion when it excluded the prior stabbing because he claims it was
admissible under State v. Sonnenberg, 117
¶17 Cross-examination on a collateral matter is limited and the
examiner must abide by a witness’s answers.
Sonnenberg, 117
¶18 A matter is collateral if it does not meet the following
test: “Could the fact, as to which error
is predicated, have been shown in evidence for any purpose independently of the
contradiction?”
¶19 As noted earlier, Smith’s trial lawyer did not do what Sonnenberg
permitted, that is ask Williamson on cross-examination about the 2002 stabbing.
Smith does not claim on this appeal that
his trial lawyer was ineffective for not doing so. Accordingly, we do not address it. See Reiman Assocs., Inc. v. R/A Adver., Inc.,
102
B. Fear of Larry’s Family.
¶20 Smith claims that the trial court erroneously sustained the State’s objection when Smith’s trial lawyer asked a witness, Lakesha Spearman, whether she knew who had apparently threatened her and of whom she was afraid. Spearman was subpoenaed by the defense but testified for the State. Before Spearman testified, Smith’s lawyer asked the court if Spearman’s therapist could accompany Spearman because she was afraid to come to court:
[S]he informed me that she was very scared about coming in…. [S]he apparently has received threats from people who [sic] she believes are the victim’s family as well as having things like -- and this is her characterization -- or her house shot up and something about a bomb being placed nearby her house.
And that was a little bit more unclear in terms of who [sic] she attributed that to. But she believes that she is being held responsible for the victim’s death in this case because she introduced the defendant to the victim and then also invited her to the party where she was obviously murdered at. So she’s being held responsible for it by the family.
The trial court let the therapist sit in the front row of the gallery while Spearman testified.
¶21 On cross-examination, Smith’s lawyer asked Spearman why she was reluctant to testify:
Q Ms. Spearman, I can see that this is a little bit difficult for you, right?
A Um-hmm.
Q Okay. You’ve been sitting there and you’ve been kind of quiet the entire time and looking down even when you were asked questions. Is there a reason why you’re looking down and you’re acting that way?
A Scared, frightened.
Q What are you scared of?
A Someone is going to do something to me.
Q I’m sorry. What?
A Somebody is going to do something to me.
Q Do you know who?
At that point, the State objected and the trial court sustained the objection. Smith contends that this was error. He argues that, without Spearman’s testimony that she was afraid of Larry’s family, “commonsense dictates the distinct possibility that jurors concluded that Spearman was afraid of Smith,” particularly in light of Spearman’s testimony that Smith shot Larry in cold blood.
¶22 Evidence of a witness’s bias must have a logical and rational
connection to the fact of the bias of the witness. State v. Williamson, 84
¶23 Smith’s lawyer could have asked, or, if prevented from asking by the trial court,
made an offer of proof, whether it was Spearman’s belief (as opposed to knowledge) that Larry’s family was
responsible for the things that made Spearman afraid. See Wis. Stat. Rule 901.03(1)(b) (offer of proof). Smith’s
trial lawyer did not, however, ask or try to ask that question, and Smith does
not argue on appeal that his trial lawyer was thereby ineffective. Thus, we do not consider it. See Reiman
Assocs., Inc., 102
By the Court.—Judgment and order affirmed.
Publication in the official reports is not recommended.
[1] The Honorable Karen E. Christenson presided over the trial and entered the judgment of conviction. The Honorable William W. Brash, III, issued the order denying the postconviction motion.
[2] During Smith’s trial, Bridgett Larry was also referred to as Bridgett Crawford. To avoid any confusion, we refer to her throughout this case as Bridgett Larry.
[3]
[E]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. This subsection does not exclude the evidence when offered for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
[4]
Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’s credibility, other than a conviction of a crime or an adjudication of delinquency as provided in s. 906.09, may not be proved by extrinsic evidence. They may, however, subject to s. 972.11 (2), if probative of truthfulness or untruthfulness and not remote in time, be inquired into on cross-examination of the witness or on cross-examination of a witness who testifies to his or her character for truthfulness or untruthfulness.